Tuesday 20 August 2019

Foster parents of boy (14) bullied over protruding teeth win High Court challenge to pay for orthodontic treatment

Foster parents paid for treatment out of their own pockets and claimed they should be reimbursed

(Stock photo)
(Stock photo)

Tim Healy

THE foster parents of a 14-year-old boy who claimed the State should have paid for orthodontic treatment he needed because of bullying over his protruding teeth have won a High Court challenge.

The court overturned a District Court decision to decline to make an order compelling the Child and Family Agency (CFA) pay the €4,750 treatment bill.

Two orthodontists had said the boy needed the treatment with one saying if it was left until he is older it would be more complex, the court heard.

The foster parents went ahead and paid for treatment out of their own pockets and the mother claimed they should be reimbursed by the CFA which oversees and pays for the placement of children in foster care.

The court heard there is a €1,400 per month tax-free payment to foster parents for children under 11 and, it had been argued, the treatment could be funded from this.  

The foster parents have looked after the boy for the last ten years along with the boy's older brother and another younger child.

Ms Justice Marie Baker quashed the District Court's decision and also urged that a review of the application for payment, as has been offered by the CFA, be conducted.  

It should be conducted by someone at a sufficiently clear distance from the original decision maker, she said.

She noted with concern the legal costs of the District and High Court cases "far outweigh the cost of the orthodontic treatment".

The case arose when the foster mother became aware funding for the treatment from CFA would not be forthcoming and she applied to the District Court to make a decision. 

While It was accepted in the District Court the treatment was in the child's interests, it declined to make an order on the basis of separation of powers between the judiciary and State bodies and therefore did not have the jurisdiction to do so.

The mother challenged that decision in the High Court. 

The CFA opposed the challenge.

In her decision Ms Justice Baker said the District Court did have the jurisdiction under the Child Care Act to make the orders sought. It could have made a decision that would have required the CFA to expend monies in the individual circumstances of a case when all relevant factors are taken into account.

The District Court did fall into error, Ms Justice Baker said.

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